N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-4.6a(3)

Revised 3/14/16

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

The defendant is charged in count _____ of the indictment with insurance fraud.

[READ COUNT OF INDICTMENT]

Our statutes provide that:

A person is guilty of a crime... if tha t person know ingly...omits or

causes a material fact to be omitted from a ny record, bill, claim or

other document, in writing, electronically, orally or in any other

form that a person attempts to submit, submits, causes to be

submitted, or attempts to cau se to be submitted as part of, in

support of, or opposition to , or in connection with, a payment or

payment to be made in accordance with the terms of an insurance

policy or premium finance transaction.

In order to convict defendant, the State must prov e beyond a reasonable doubt the

following three elements:

(1) that the defendant knowingly omitted a fact or caused a fact

to be omitted from a record, bill, claim, or other document,

in writing, electronically, orally or in any other form;

(2) that the defendant (CHOOSE APPROPRIATE)

(submitted)(caused to be submitted)(attempted to

submit)(or attempted to cause to be submitted) that record,

bill, claim or other document, electronically, orally or in

any other form as (part of)(in support of)(in opposition

to)(in connection with) a payment or a payment to be made

in accordance with an insurance policy or premium finance

transaction;

(3) that the omitted fact was material.

The first element that the State must pr ove beyond a reasonable doubt is that the

defendant knowingly omitted a statement of fact or caused to be omitted a statement of

fact from a record, bill, claim or other document. The statement may have been made in

writing, electronically, orally or in any other form.

A person acts knowingly with respect to the nature of his/her conduct or the

attendant circumstances if he/she is aware that his/her conduct is of that nature, or that

such circumstances exist, or he/she is aware of a high probability o f their existence. A

person acts knowingly with respect to a result of his/her conduct if he/she is aware that it

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

is practically certain that his/her conduct will cause such a result. "Knowing," "with

knowledge," or equivalent terms have the same meaning. Knowingly is a state of mind

and cannot be seen and can only be determined by inference from conduct, words or acts.

Therefore, it is not necessary that witnesses be produced by the State to testify that a

defendant said that he/she knowingly did something. His/her knowledge may be

gathered from his/her acts and his/her conduct and from all he/she said and did at the

particular time and place and from all the surrounding circumstances reflected in the

testimony [and evidence adduced at trial].

The second element the State must prove beyond a reasonable doubt is that the

defendant (submitted) (caused to be submitted) (attempted1 to submit)(attempted to cause

to be submitted ) the statement (as part of ) (in connection with )(in support of)(in

opposition to) a payment made or to be made in accordance with the terms of an

insurance policy or premium finance transaction.

"Insurance policy" means the instrument, in writing, electronically or in any other

form, in which are set forth the terms of any certificate of insurance, binder of coverage,

contract of insurance or contract of re -insurance, issued by an insurance company,

including, but not limited t o, a State -assigned risk plan, plan of indemnity protection

provided by or on behalf of a joint insurance fund or benefit plan, motor club service

plan, or guaranty bond, surety bond, cash bond or any other alternative to insurance

authorized or permitted by the State of New Jersey.2

“Insurance company” means any person, company, corporation, unincorporated

association, partnership, professional corporation, agency of government and any other

entity authorized or permitted to do business in New Jersey, subj ect to regulation by the

State, or incorporated or organized under the laws of any other state of the United States

or of any foreign nation or of any province or territory thereof, to indemnify another

1 If attempt is charged, the jury should be instructed from the Model Jury Charge, Attempt

N.J.S.A. 2C:5-1, as attempt requires a purposeful mental state.

2 N.J.S.A. 2C:21-4.5.

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

against loss, damage, risk or liability arising from a contingent or unknown event.

Insurance company includes, but is not limited to, an insurance company as that term is

defined in section 3 of P.L. 1983, c. 320 (C. 17:33A-3), self-insurer, re-insurer, reciprocal

exchange, inter -insurer, hospital, med ical or health service corporation, health

maintenance organization, surety, assigned risk plan, joint insurance fund, and any other

entity legally engaged in the business of insurance as authorized or permitted by the State

of New Jersey, including but no t limited to any such entity incorporated or organized

under the laws of any other state of the United States or of any foreign nation or of any

province or territory thereof.3

[CHARGE APPROPRIATE SECTION IF APPLICABLE:

Insurance company includes, but is n ot limited to, an insurance company which

can be in the form of any corporation, association, partnership, reciprocal exchange,

interinsurer, Lloyd's insurer, fraternal benefit society or other person engaged in the

business of insurance pursuant to Subtit le 3 of Title 17 of the Revised Statutes (C. 17:17-

1 et seq.), or Subtitle 3 of Title 17B of the New Jersey Statutes (C. 17B:17-1 et seq.); or

any medical service corporation operating pursuant to P.L. 1940, c. 74 (C. 17:48A-1 et

seq.); or any hospital service corporation operating pursuant to P.L. 1938, c. 366 (C.

17:48-1 et seq.); or any health service corporation operating pursuant to P.L. 1985, c. 236

(C. 17:48E-1 et seq.); or any dental ser vice corporation operating pursuant to P.L. 1968,

c. 305 (C. 17:48C-1 et seq. ); or any dental plan organization operating pursuant to P.L.

1979, c. 478 (C. 17:48D-1 et seq. ); or any insurance plan operating pursuant to P.L.

1970, c. 215 (C. 17:29D-1); or the New Jersey Insurance Underwriting Association

operating pursuant to P.L. 1968, c. 129 (C. 17:37A-1 et seq. ); or the New Jersey

Automobile Full Insurance Underwriting Association operating pursuant to P.L. 1983, c.

65 (C. 17:30E-1 et seq.) and the Market Transition Facility operating pursuant to section

88 of P.L. 1990, c. 8 (C. 17:33B-11); or any risk retention group or purcha sing group

3 Id.

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

operating pursuant to the "Liability Risk Retention Act of 1986," 15 U.S.C. § 3901 et

seq.4, or a self-insurer, re-insurer, reciprocal exchange, inter-insurer, hospital, medical or

health service corporation, health maintenance organization, surety, assigned risk plan,

joint insurance fund, and any other entity legally engaged in the business of insurance as

authorized or permitted by the State of New Jersey, including but not limited to any such

entity incorporated or organized under the laws of any other state of the United States or

of any foreign nation or of any province or territory thereof.5

Premium finance transaction means a transaction involving or related to insurance

premium financing which is subject to the Insurance Premium Finance Company Act,

P.L. 1968, c. 221 (N.J.S.A. 17:16D-1 et. seq.]6

[RESUME MAIN CHARGE]

The third element the State must prove beyond a reasonable doubt is that the

statement omitted was material.

An omitted fact is material if it could have reasonably affected the decision by an

insurance company to provide insurance coverage to a claimant or the decision to provide

any benefit pursuant to an insurance policy or the decision to provide reimbursement or

the decision to pay a claim.7 (THE COURT SHOULD TAILOR THIS PORTION OF

THE CHARGE TO THE FACTS IF MATERIALITY IS DISPUTED) 8

[CHARGE IF APPLICABLE]

(Statutory Inference regarding signature or initials) 9

If you find that ________ signed or initialed an application, bill, claim, affidavit,

certification, record or other document, then you may infer that he/she read and reviewed

4 P.L. 1983, c. 320 (sec. 3)(N.J.S.A. 17:33A-3).

5 N.J.S.A. 2C:21-4.5.

6 Id.

7 State v. Goodwin, 224 N.J. 102, 115 (2016).

8 See Model Jury Charges, Criminal, Perjury , N.J.S.A. 2C:28-1b. This paragraph should

be tailored to the appropriate facts of the case if the issue regarding materiality is disputed or falls

outside the examples cited. The New Jersey Supreme Court has consistently held that the

subjective good faith of the applicant regarding an “innocent” mistake was not relevant to the

materiality determination. Palisades Safety and Ins. Ass’n v. Bastien, 175 N.J. 144, 151 (1995).

9 N.J.S.A. 2C:21-4.6(c).

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

the application, bill, claim, affidavit, certification, record or other document.

An inference is a deduction of fact that may be drawn logically and reasonably

from another fact or group of facts established by the evidence. Whether or not a n

inference should be drawn is for you to decide using your own common sense,

knowledge and everyday experience. Ask yourselves is it probable, logical and

reasonable. However, you are never required or compelled to draw an inference. You

alone decide wh ether the facts and circumstances shown by the evidence support an

inference and you are always free to draw or not to draw an inference. If you draw an

inference, you should weigh it in connection with all the other evidence in the case

keeping in mind that the burden of proof is upon the State to prove all the elements of the

crime beyond a reasonable doubt.

[CHARGE IF APPLICABLE]

(Multiple fraudulent statements alleged in a single narrative or document)

The State alleges that the defendant omitted mult iple statements of facts that are

alleged to be material. Multiple fraudulent statements may be considered by you to

constitute multiple acts of insurance fraud only if the alleged fraudulent statement relates

to a conceptually distinct claim. (Here, the State alleges the claims are distinct: Instruct

the jury as to the nature of the State’s claim. Charge the defendant’s version, if

requested.)

If the multiple statements made in a single narrative or document relate to a claim

that is conceptually simila r, it may then constitute only a single act of insurance fraud. 10

Thus, you must unanimously find that the State has met its burden to prove the four

elements that I have defined for you as to a particular statement contained in any single

narrative or doc ument.11 In other words, all twelve of you must agree that a particular

10 State v. Fleischman , 189 N.J. 539, 554 (2007). As an example where multiple false

statements in a single narrative would constitute separate acts, Fleischman points to the situation

where a false statemen t is made that an automobile was stolen, and that a false claim was made

that a fur coat was in the automobile at the time of the theft. This would constitute separate acts of

insurance fraud, even if contained in a single narrative. Id. at 546-547 n.3.

11 The Committee’s view is that this specific unanimity charge is required as to a particular

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

statement contained in the narrative or document satisfies all four elements beyond a

reasonable doubt in order to find the defendant guilty.

[RESUME MAIN CHARGE]

If the State has fa iled to prove any of these elements beyond a reasonable doubt,

then you must find defendant not guilty of the crime of insurance fraud. If you find that

the State has proven beyond a reasonable doubt each of the four elements, then you must

find defendant guilty of the crime of insurance fraud. If you find the defendant guilty of

the crime of insurance fraud, you must then go on to consider the following.

[CHARGE IF SECOND DEGREE INSURANCE FRAUD IS ALLEGED]

If you find that the State has proven the defen dant guilty of insurance fraud, you

must then consider if the defendant knowingly committed five or more acts of insurance

fraud that had an aggregate value of at least one thousand dollars.

A section of our statute provides that the more serious crime of insurance fraud is

if the defendant knowingly committed five or more acts of insurance fraud that had an

aggregate value of at least one thousand dollars.12

I have already defined the mental state of knowingly for you.

An omitted material fact contained in a separate document or narr ative relating to

a single application may each constitute a separate act of insurance fraud. 13 However,

multiple statements in the same narrative or document relating to a conceptually similar

claim may only constitute a single act of insurance fraud. Thus, to find five or more acts,

statement pursuant to State v. Frisby, 174 N.J. 583 (2002) and State v. Gentry, 183 N.J. 30 (2005)

and the cases cited therein as a matter of state constitutional l aw. Although a specific unanimity

charge is not required in every circumstance where the jury must find some preliminary factual

circumstances which might be evidence of a single course of conduct, see e.g. State v. Parker ,

124 N.J. 628, 633 (1994) and examples cited therein, the discrete inquiry the jury must undertake

regarding the materiality of a statement seems to make this scenario more like those examples

cited in Frisby and Gentry which require a specific unanimity instruction as opposed to Parker

and examples cited therein. A special verdict form may be needed to be used if the circumstances

warrant.

12 N.J.S.A. 2C:21-4.6(b). The statute states that claims of health care claims fraud can be

aggregated under this section. If there are allegations of health care claims fraud, N.J.S.A.

2C:21.4.2, the Model Jury Charge on Health Care Claims Fraud should be used as appropriate for

those alleged acts.

13 State v. Fleischman, 189 N.J. at 554.

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

you must find that the State has proven beyond a reasonable doubt, that the defendant

knowingly made false, fictitious, fraudulent or misleading statements or omitted a

material fact or caused to have omitted a material fact in five or more discrete documents

or narratives. Statements relating to the same application that are contained in separate

narratives or documents may constitute more than a single act, if the State has proven

beyond a reasonable doubt that defendant submitted (caused to be submitted)

(attempted14 to submit)(attempted to cause to be submitted) the particular statement (as

part of) (in connection with)(in support of)(in opposition to) a payment made or to be

made in accordance with the terms of an insurance policy or premium finance

transaction.

[CHARGE IF APPROPRIATE]

For example, if a docu ment omitted a particular illness history and omitted the

number of claims previously made by an insured , that would still constitute only a single

act of insurance fraud. If, however, the omitted fact of the illness history was made in one

document, and the number of claims previously made was omitted in another document,

even if the statements were made in connection with the same payment, that would

constitute separate acts of insurance fraud.15

[RESUME MAIN CHARGE]

The State must also prove beyond a reasonable doubt that the total value of the

property, services or other benefit wrongfully obtained or sought to be obtained was

$1,000 or more.

In summary, if you find that the State has failed to prove any of the elements of

the crime of Insurance Fraud, you must find the defendant not guilty. If you find the

State has proven beyond a reasonable doubt all of the elements of insurance fraud, a nd

the State has proven beyond a reasonable doubt that the defendant committed five or

14 If attempt is charged, the jury should be instructed from the Model Jury Charge, Attempt

N.J.S.A. 2C:5-1, as attempt requires a purposeful mental state.

15 The trial court should not charge similar examples which mirror the acts alleged in the

indictment. The examples above should be changed if that occurs.

INSURANCE FRAUD: OMISSION OF MATERIAL FACT (PAYMENTS)

N.J.S.A. 2C:21-4.6a(3)

more acts of insurance fraud, and that the total value of the acts was one thousand dollars

($1,000) or more, then you must find the defendant guilty of the more serious crime of

Insurance Fraud. If you find the State has failed to prove either that the defendant

committed five or more acts of insurance fraud, or that the total value was one thousand

dollars or more, beyond a reasonable doubt, but find that the State has proven all of the

other elements of Insurance Fraud beyond a reasonable doubt, then you must find the

defendant not guilty of the more serious crime of Insurance Fraud, and you must find the

defendant guilty of the less serious crime of Insurance Fraud.